RULE 112 - PRELIMINARY INVESTIGATION
kind before an accused person is placed on trial, is to secure the innocent against hasty, malicious
DEFINITION
“Section 1. Preliminary investigation defined; when required. – Preliminary investigation is an
inquiry or proceeding to determine whether there is sufficient ground to engender a well-
founded belief that a crime has been committed and the respondent is probably guilty
thereof, and should be held for trial.
Except as provided in Section 7 of this Rule, a preliminary investigation is required to be
conducted before the filing of a compliant or information for an offense where the penalty
prescribed by law is at least four (4) years, two (2) months and one (1) day without regard to
the fine.”
NATURE
The determination of probable cause during a preliminary investigation is an executive function, the
correctness of the exercise of which is a matter that the trial court itself does not and may not be
compelled to pass upon.
In a preliminary investigation, the investigating prosecutor makes a determination if there’s a probable
cause, which is the existence of such facts and circumstances as would excite the belief, in a
reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged
was guilty of the crime for which he was prosecuted. It has been explained as a reasonable
presumption that a matter is, or may be, well founded, such a state of facts in the mind of the
prosecutor as would lead a person of ordinary caution and prudence to believe, or entertain an honest
or strong suspicion, that a thing is so. The term does not mean “actual and positive cause” nor does it
import absolute certainty. It is merely based on opinion and reasonable belief. Thus, a finding of
probable cause does not require an inquiry into whether there is sufficient evidence to procure a
conviction. It is enough that it is believed that the act or omission complained of constitutes the
offense charged, as there is a trial for the reception of evidence of the prosecution in support of the
charge.
RIGHT
The right to a preliminary investigation is not a mere formal right; it is a substantive right. To deny the
accused of such right would be to deprive him of due process.
This must be so, because the purpose of a preliminary investigation or a previous inquiry of some
and oppressive prosecution, and to protect him from an open and public accusation of a crime, from
the trouble, expenses and anxiety of public trial. It is also intended to protect the state from having to
conduct useless and expensive trials. While the right is statutory rather than constitutional in its
fundament, it is a component part of due process in criminal justice. The right to have a preliminary
investigation conducted before being bound over to trial for a criminal offense and hence formally at
risk of incarceration or some other penalty, is not a mere formal or technical right; it is a substantive
right. To deny the accused's claim to a preliminary investigation would be to deprive him of the full
measure of his right to due process.(Duterte vs SB, 1998, G. R. No. 130191)
WAIVER
Attention should also be called to the fact that neither the 1935 nor the 1973 Constitution requires the
holding of a preliminary investigation. It is settled doctrine that the right thereto is of statutory
character and may be invoked only when specifically created by the statute. It is not a fundamental
right and may be waived expressly or by silence. (Antonio Marinas, et al. v. Hon. Andres S. Siochi, et
al., 104 SCRA 423) (Tan)
It shall be deemed waived by:
1. Express waiver or by silence (Herrera, 2007);
2. Failure to invoke it during arraignment (People v. De Asis, G.R. No. 105581, December 7, 1993);
and
3. Consenting to be arraigned and entering a plea of not guilty without invoking the right to preliminary
investigation (People v. Bulosan, G.R. No. 58404, April 15, 1988).
NOTE: The waiver, whether express or implied, must be in a clear and unequivocal manner (Herrera,
2007).
Exceptions
The court may intervene in the prosecution of cases. In Brocka v Enrile(1990), the Court cited some
of these exceptions as follows:
"a. To afford adequate protection to the constitutional rights of the accused (Hernandez vs. Albano,
et al., L-19272, January 25, 1967, 19 SCRA 95);
"b. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of
actions (Dimayuga, et al. vs. Fernandez, 43 Phil. 304; Hernandez vs. Albano, supra; Fortun vs.
Labang, et al., L-38383, May 27, 1981, 104 SCRA 607);
"c. When there is a pre-judicial question which is sub judice (De Leon vs. Mabanag, 70 Phil. 202);
"d. When the acts of the officer are without or in excess of authority (Planas vs. Gil, 67 Phil. 62);
"e. Where the prosecution is under an invalid law, ordinance or regulation (Young vs. Rafferty, 33
Phil. 556; Yu Cong Eng vs. Trinidad, 47 Phil. 385, 389);
"f. When double jeopardy is clearly apparent (Sangalang vs. People and Avendia, 109 Phil. 1140);
"g. Where the court has no jurisdiction over the offense (Lopez vs. City Judge, L-25795, October 29,
1966, 18 SCRA 616);
"h. Where it is a case of persecution rather than prosecution (Rustia vs. Ocampo, CA-G.R. No. 4760,
March 25, 1960);
"i. Where the charges are manifestly false and motivated by the lust for vengeance (Recto vs.
Castelo, 18 L.J. [1953], cited in Rañoa vs. Alvendia, CA-G.R. No. 30720-R, October 8, 1962; Cf,
Guingona, et al vs. City Fiscal, L-60033, April 4, 1984, 128 SCRA 577); and
"j. When there is clearly no prima facie case against the accused and a motion to quash on that
ground has been denied (Salonga vs. Paño, et al., L-59524, February 18, 1985, 134 SCRA 438).
(TAN, 2015)
OFFICERS AUTHORIZED TO CONDUCT PI
Sec. 2. Officers authorized to conduct preliminary investigations. – The following may conduct
preliminary investigations:
(a) Provincial or City Prosecutors and their assistants;
(b) Judges of the Municipal Trial Courts and Municipal Circuit Trial Courts;
(c) National and Regional State Prosecutors; and
(d) Other officers as may be authorized by law.
Their authority to conduct preliminary investigations shall include all crimes cognizable by the proper
court in their respective territorial jurisdictions.
2. The following are also authorized to conduct a preliminary investigation:
COMELEC
(a) Under the amendments to the Omnibus Election Code, the Commission on Elections, through its
duly authorized legal officers, has the power, concurrent with the other prosecuting arms of the
government, to conduct preliminary investigation of all election offenses punishable under the
Omnibus Election Code and to prosecute the same (Sec. 265, B.P. 881, Omnibus Election Code, as
amended by RA. 9369, Sec. 43).
The Constitution, particularly Sec. 20, Article IX, empowers the COMELEC to investigate and, when
appropriate, prosecute election cases. Furthermore, under Section 265 of the OEC, the COMELEC,
through its duly authorized legal officers, has the exclusive power to con-duct the preliminary
investigation of all election offenses punishable under the OEC and to prosecute the same. Under
Section 265 of the OEC, the COMELEC may avail itself of the assistance of other prosecuting arms of
the government. Thus, Section 2, Rule 34 of the COMELEC Rules of Procedure provides for the
continuing delegation of authority to other prosecuting arms of the government, which authority,
however, may be revoked or withdrawn at anytime by the COMELEC in the proper exercise of its
judgment. Sec. 10 of the same Rule 34 gives the COMELEC the power to motu proprio revise, modify
and reverse the resolution of the Chief State Prosecutor and/or provincial/city prosecutors.
OMBUDSMAN
(b) The Office of the Ombudsman has the authority to investigate and prosecute on its own or on
complaint by any person, any act or omission of any public officer or employee, office or agency,
when such act or omission appears to be illegal, unjust, improper or inefficient. It has primary
jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary
jurisdiction, it may take over, at any stage, from any investigatory agency of the government, the
investigation of such cases (Sec. 15[1], R.A. 6770).
PCGG
(c) The Presidential Commission on Good Government with the assistance of the Office of the …iii. Motion for reinvestigation of the prosecutor
Solicitor General and other government agencies is empowered to investigate, file and prosecute
recommending the filing of information once the
cases investigated by it (Executive Order No. 14, May 7,1986).
information has been filed before the court (1) if
the motion is filed without prior leave of court;
PRELIMINARY INVESTIGATION BY MTC JUDGE
(2) when preliminary investigation is not
Before the amendments, judges of the Municipal Trial Courts and Municipal Circuit Trial Courts were
allowed to conduct preliminary investigations (Mago v. Pefialosa-Fermo, 582 SCRA 1). Judges of first required under Sec. 8, Rule 112; and (3) when
level courts are no longer allowed to conduct preliminary investigations (Sibulo v. Toledo- Mupas, the regular preliminary investigation is required
A.M. No. MTJ-07-1686, June 12,2008).
and has been actually conducted, and the
grounds relied upon in the motion are not
RTC JUDGES HAVE NO POWER TO CONDUCT PI
meritorious, such as issues of credibility,
They do not, but this should not be confused with the authority of the RTC to conduct an examination
for the purpose of determining probable cause when issuing a warrant of arrest admissibility of evidence, innocence of the
accused, or . lack of due process when the
MOTION TO DISMISS Prohibited in PI accused was actually notified, among others.

GR: In preliminary investigation, a motion to dismiss is not an accepted pleading for it merely alleges
the innocence of the respondent without rebutting or repudiating the evidence of the complainant.
XPN: When it contains countervailing evidence or defenses and evidence which rebuts or repudiates
the charges; in which case it will be treated as a counter-affidavit.
NOTE: If one files a motion to dismiss and he only asserts that the case should be dismissed, then
the motion to dismiss is a mere scrap of paper. If the respondent does not later on submit a counter-
affidavit, it will constitute a waiver on his part to file a counter-affidavit.
Re-investigation
Prohibited motions:…
Discovery Proceedings
Failure to provide discovery procedure during preliminary investigation does not negate its use by a
person under investigation when indispensable to protect his constitutional right, liberty, and property.
Right to compel the disclosure of exculpatory facts during PI is rooted in constitutional protection of
due process which is operational even at that stage. (Webb v De Leon) (Tan 2015)
Duty of the Investigating Officer
From the filing of the complaint, the investigating officer has 10 days within which to decide on which
of the following options to take:
1. To dismiss the complaint if he finds no ground to conduct the investigation; or
2. To issue a subpoena in case he finds the need to continue with the investigation, in which case the
subpoena shall be accompanied with the complaint and its supporting affidavits and documents (Sec.
3(b), Rule 112).
NOTE: Within 10 days from receipt of subpoena, the respondent is required to submit his counter-
affidavit, the affidavits of his witnesses and the supporting documents relied upon for his defense
(Sec. 3(c), Rule 112).
Despite the subpoena, if the respondent does not submit his counter-affidavit within the ten-day
period granted him, the investigating officer shall resolve the complaint based on the evidence
presented by the complainant. The same rule shall apply in case the respondent cannot be
subpoenaed (Sec. 3 (d) Rule 112).
Determination of Probable Cause
If the investigating prosecutor finds cause to hold the defendant for trial, he shall prepare the
resolution and information (Sec. 4, Rule 112).
The information shall contain a certification by the investigating officer under oath in which he shall
certify the following:
1. That he, or as shown by the record, an authorized officer, has personally examined the
complainant and his witnesses;
2. That there is reasonable ground to believe that a crime has been committed;
3. That the accused is probably guilty thereof
4. That the accused was informed of the complaint and of the evidence submitted against him; and
5. That he was given an opportunity to submit controverting evidence (Sec. 4, Rule 112).
Within 5 days from the issuance of his resolution, the investigating prosecutor shall forward the record
of the case to the provincial or city prosecutor or chief state prosecutor, or to the Ombudsman or his
deputy by the Sandiganbayan in the exercise of its original jurisdiction. They shall act on the
resolution within ten days from their receipt thereof and shall immediately inform the parties of such
action (Sec. 4, Rule 112).
The resolution of the investigating prosecutor is merely recommendatory. No complaint or information
may be filed or dismissed by an investigating prosecutor without the prior written authority or approval
of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy (Sec. 4,
Rule 112).
When the Investigating Prosecutor recommends the dismissal of the complaint but his findings are
reversed by the “Superior” Prosecutor or Ombudsman on the ground that probable cause exists, the
“superior” prosecutor or Ombudsman may by himself, file the information against the respondent, or
direct another assistant prosecutor to do so without conducting another preliminary investigation (Sec.
4, Rule 112).
Remedy against prosecutor’s refusal to indict
An aggrieved party may appeal by filing a verified petition for review with the Secretary of Justice and
by furnishing copies thereof to the adverse party and prosecution office issuing the appealed
resolution. The appeal shall be taken within 15 days from receipt of the resolution or of the denial of
the motion for reconsideration/reinvestigation if one has been filed within 15 days from receipt of the
assailed resolution. Only one motion for reconsideration shall be allowed. Unless the Secretary
directs otherwise, the appeal shall not stay the filing of the corresponding information in court on the
basis of the finding of probable cause in the assailed decision.
The decision of the prosecutor may be reviewed by the courts when he acts with grave abuse of
discretion amounting to lack of jurisdiction (Herrera, 2007).
Note: The prosecutor cannot be compelled by mandamus to file a complaint as the determination of
probable cause is within the discretion of the prosecutor.
Note: The SC and CA have the power to review the findings of prosecutors in preliminary
investigations. Even RTC (Ladlad v. Velasco, G.R. Nos. 172070-72, June 1, 2007).
Appeal to Secretary of Justice
The Secretary of Justice may motu proprio reverse or modify the resolution of provincial or city
prosecutor or chief state prosecutor. The Secretary of Justice may review resolutions of his
subordinates in criminal cases despite the information being filed in court (Community Rural
Bank of Guimba v. Talavera, A.M. No. RTJ-05-1909, April 6, 2005). The Secretary of Justice
exercises the power of direct control and supervision over prosecutors, and may thus affirm, nullify,
reverse or modify their rulings. In reviewing resolutions of state prosecutors, the Secretary of Justice
is not precluded from considering errors, although unassigned, for the purpose of determining
whether there is probable cause for filing cases in court.
NOTE: If the Secretary of Justice reverses or modifies the resolution of the provincial or city
prosecutor or chief state prosecutor, he shall direct the prosecutor concerned either to file the
corresponding information without conducting another preliminary investigation, or to dismiss or move
for dismissal of the complaint or information with notice to the parties (Sec. 4, Rule 112).
When warrant of arrest may issue
Actions by the judge upon the filing of the Complaint or Information (Bar 2009)
Within 10 days from the filing of the complaint or information, the judge shall personally evaluate the
resolution of the prosecutor. In conducting the evaluation of the resolution, the judge shall look into
supporting evidence (Sec. 5, Rule 112).
Options of the judge upon the filing of Information
1. Dismiss the case if the evidence on record clearly failed to establish probable cause;
2. If he or she finds probable cause, issue a warrant of arrest or issue a commitment order of the
accused has already been arrested pursuant to a warrant of arrest or lawfully arrested without
warrant; and
3. In case of doubt as to the existence of probable cause, order the prosecutor to present additional
evidence within five days from notice, the issue to be resolved by the court within thirty days from the
filing of the information
NOTE: It bears stressing that the judge is required to personally evaluate the resolution of the
prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on
record clearly fails to establish probable cause (Ong v. Genio, G.R. No. 182336, December 23, 2009).
Determination of Probable Cause by Judge vs that of Prosecutor
The one made by the judge, judicial, is to ascertain whether a warrant of arrest should be issued
against the accused. On the other hand, the public prosecutor, executive, determines probable cause
in a preliminary investigation where he is given broad discretion to determine whether probable cause
exists for the purpose of filing a criminal information in court.
Remedy of accused when there is no probable cause
Period to properly question the lack of preliminary investigation
The accused must do so before he enters his plea. The court shall resolve the matter as early as
practicable but not later than the start of the trial. An application for or admission of the accused to
bail does not bar him from raising such question (Sec. 26, Rule 114). Failure to invoke the right before
entering a plea will amount to a waiver.
Remedies available to the accused if there was no preliminary investigation conducted pursuant to a
lawful warrantless arrest
1. Before the complaint or information is filed, the person arrested may ask for a preliminary
investigation but he must sign a waiver of the provisions of Art. 125 of the RPC, as amended, in the
presence of his counsel;
NOTE: Art. 125 of the RPC deals with the period of delay in the delivery of detained persons to the
proper judicial authorities. In every case, the person detained shall be informed of the cause of his
detention and shall be allowed upon his request, to communicate and confer at any time with his
attorney or counsel (Art. 125, RPC).
2. The waiver by the person lawfully arrested of the provisions of Art. 125 of the RPC does not
preclude him from applying for bail;
3. After the filing of the complaint or information in court without a preliminary investigation, the
accused may, within 5 days from the time he learns of its filing, ask for a preliminary investigation with
the same right to adduce evidence in his evidence as provided in this Rule (Sec. 6, Rule 112).